In August 2014, the State Government introduced to Parliament the Return to Work Bill 2014 and the South Australian Employment Tribunal Bill 2014. The Return to Work Bill provides a new statutory scheme to support injured workers and their employers in circumstances of a work related injury. The new arrangement will be referred to as the Return to Work Scheme. The Return to Work Bill replaces the current state workers compensation legislation, the Workers Rehabilitation and Compensation Act 1986 (‘’the 1986 Act’’) and represents the most significant change in South Australian workers compensation since the inception of the current legislative scheme more than 25 years ago. While many provisions remain from the 1986 Act, the Return to Work Bill introduces several new provisions which will significantly impact on the entitlements of injured workers and the management of workers compensation in South Australia. The associated South Australian Employment Tribunal Bill establishes the South Australian Employment Tribunal. This Tribunal replaces the Workers Compensation Tribunal and has jurisdiction to review certain decisions arising from the Return to Work Scheme.
If accepted as proposed by the Government, the Return to Work Bill and South Australian Employment Tribunal Bill are expected to commence on 1 July 2015.
The proposed reforms
Among the proposed changes in the Return to Work Bill is a distinction between seriously injured workers and other injured workers. An injured worker who suffers physical or psychiatric injuries causing at least 30% whole person impairment will meet the definition of a seriously injured worker. It is anticipated that the Impairment Assessment Guidelines will provide for the combination of whole person impairment in certain specified circumstances in order for an injured worker to reach the 30% whole person impairment threshold. Under the existing scheme, the WorkCover SA Guidelines for the Evaluation of Permanent Impairment 2009 allows impairments resulting from more than one disability caused by the same trauma to be assessed together in determining the degree of permanent impairment. Moreover, where compensable disabilities occur in the same calendar year, the whole person impairment is also combined to give an overall whole person impairment.
Seriously injured workers
Workers who suffer serious work related injuries will have greater entitlements under the Return to Work Scheme. The entitlements for seriously injured workers include access to common law damages where an injury arises from negligence of an employer. Under the 1986 Act, an injured worker is prohibited from bringing a common law negligence claim against an employer meaning that the injured worker’s entitlements are limited to statutory entitlements by way of weekly payments, medical expenses and permanent impairment compensation. A common law claim through the Courts entitles an injured worker to claim damages under various categories known as heads of damage which are not available in a claim for compensation under the 1986 Act. These categories include pain and suffering, economic loss, gratuitous services, loss of a chance and loss of consortium. As a result, a common law claim represents a significant departure from the more restrictive entitlements under the existing workers compensation scheme for seriously injured workers. Common law damages will also extend to claims arising from a work related death.
In addition, seriously injured workers will have access to a more favourable scheme of income maintenance. Seriously injured workers will be eligible for 100 per cent of weekly payments in the first year and 80 per cent thereafter until retirement. Under the present scheme which applies to all workers irrespective of the extent of injury, weekly payments are incrementally decreased from 100 per cent in the first 13 weeks post injury to 90 per cent for the following 13 weeks and 80 per cent thereafter until 130 weeks post injury. The proposed scheme extends a seriously injured worker’s entitlement to full (100%) weekly payments by almost four times compared the entitlement under the existing scheme.
Workers who are not ‘’seriously injured’’
The Return to Work Scheme will also extend entitlements to compensation for less seriously injured workers. An injured worker who does not meet the seriously injured criteria but suffers at least a 5% whole person impairment will now have an entitlement to compensation for economic loss in addition to lump sum compensation for non economic loss (permanent impairment) which is available under the existing scheme. The lump sum amounts for non-economic loss are to be prescribed by Regulation. The Return to Work Bill prescribes minimum lump sum payments payable for non-economic loss and divides them into ranges 5-9%, 10-29%, 30-49% and 50-100%. The minimum amount of compensation payable at each category is indexed annually.
Weekly payments for less seriously injured workers will cease at the end of 2 years unless the worker is seriously injured (which means a 30% or greater whole person impairment).
In sum, the legislative changes proposed by the Return to Work Bill and South Australian Employment Tribunal Bill represent a profound change to South Australian workers compensation. Seriously injured workers will have access to greater entitlements under the new scheme, and less seriously injured workers will have an entitlement to economic loss in addition to permanent impairment compensation.
If you or someone you know has suffered a work related injury it is important that you receive competent advice and representation. At Turner Freeman Lawyers we are able to provide you with advice and representation at all stages of your workers compensation claim. To speak with one of our worker’s compensation solicitors please contact our office on 8213 1000.